Judge Rader’s remarks have been circulated in their entirety by several media outlets; however, a few observations are worth noting with regard to how Judge Rader proposes to improve patent litigation.

• Discovery Management/Control. Judge Rader emphasized the need for increased discovery management in order to control costs and encourage efficiency, particularly with respect to electronic discovery. He circulated and discussed a Model Order related to electronic discovery proposed by the Advisory Council for the Federal Circuit. This Model Order provides for the exchange of traditional evidence on accused products and then email discovery could occur with respect to 5 custodians and 5 search terms per custodian. These limits could be exceeded at the requesting party’s own expense (i.e., cost-shifting).

• Summary Judgment. Judge Rader believes that summary judgment may be a tool to clear the congested patent docket, and he encouraged the bar to work with the court to determine if there are 1-2 summary judgments per each case that might be properly brought to end litigation before a trial occurs.

• Transfer Motions. Judge Rader indicated that the new Patent Pilot Program might provide an opportunity for the court and the bar to evaluate venues that could be convenient to the parties. He suggested that a court’s participation in the Patent Pilot Program may become a factor to consider in venue analysis, but it is still up in the air as to how much weight participation in the Program may carry in the venue analysis.

• Early Valuation. Judge Rader noted that not all patents and patent cases are created equal. If the court and the parties can identify the economic value of a case early on, then the timing and procedures for the case may be properly tailored.

Overall, Judge Rader believes that we need to ensure that patent law fosters innovation and the courts should be used for the pursuit of justice. By making improvements to the patent litigation system, Judge Rader believes that the playing field may be more equalized for plaintiffs and defendants going forward. Now it is up to the courts and the patent bar to continue the discussion about the challenges and steps to implementation of some of Chief Judge Rader’s proposals.

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Hon. Jeff Kaplan, U.S. Magistrate Judge in the Northern District of Texas, Dallas Division, participated in a judges panel at the State Bar of Texas 7th Annual Advanced Patent Litigation course in San Antonio on July 14, 2011. Judge Kaplan addressed several subjects of interest:

Patent Pilot Program. Judge Kaplan touched on how the judges of the Northern District are excited about being part of the Patent Pilot Program. The patent docket in the N.D. Texas is steadily increasing, and they hope to see more filings. Judges Linn, Godbey and Kinkeade of the Dallas Division will be part of the Pilot Program, and they hope that the other judges of the Northern District will pass their patent cases to them as they are entitled to do in the Program. Judge Kaplan also anticipates that the judges in the Patent Pilot Program will adhere to the Patent Rules and conduct patent cases in a somewhat uniform manner.

Daubert Challenges. Judge Kaplan noted that Daubert challenges are becoming too common. Attorneys need to be careful about the number and type of points made in Daubert motions. Judge Kaplan described how he now holds a pre-Daubert motion conference to confirm which experts may testify at trial to more effectively narrow the amount and scope of expert testimony and informally examine the possible challenges. Judge Kaplan thinks this pre-Daubert motion conference may cause parties to think twice before filing Daubert motions.

Damages. Judge Kaplan discussed the need for patent trial attorneys to appreciate and master the art of proving damages. He suggested that patent attorneys seek out successful plaintiff’s attorneys for advice on proving damages effectively.

Trial. Judge Kaplan observed that attorneys are often too repetitive at trial.

Summary Judgment. Judge Kaplan noted that the summary judgment record in patent cases is often too long and includes much more than is necessary for the court to fully consider the motion. Do not bury important information in an overly long record – by doing so, parties run the risk of that information not being fully considered or that information may be obscured by less pertinent information.

Thanks to Magistrate Judge Kaplan as well as Hon. Lee Yeakel (Western District of Texas), Hon. Ron Clark (Eastern District of Texas), and Hon. Andrew S. Hanen (Southern District of Texas) for their participation in this interesting panel.

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Judge Fitzwater’s denial of the motion to dismiss found that the claims of direct and indirect infringement are supported by the following pertinent facts alleged in the amended complaint:

• Direct Infringement –
  • Defendant produces and sells using an infringing method (the Court noted the method was fully described in the complaint);
  • Defendant either uses or directs, controls, or instructs a third party who uses every element of the infringing method;
  • Defendant describes and advertises the accused method on its website; and
  • Defendant has actual knowledge of the patent at issue.

• Inducement of Infringement –
  • Defendant uses or sells methods claimed in the patent at issue in the accused application or directs or controls third parties who perform the claimed method; and
  • Defendant has actual knowledge of the patent at issue and continued to sell its infringing application willfully.

• Contributory Infringement –
  • Defendant sells a product, method, or system that is a component designed for use in the infringing manner; and
  • Defendant has sold software tools and instructions to aid in the use of the application.

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